88 F. 181 -

88 F1d 181

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Case Text

MOSS V. DOWMAN.

181

terial and partly discretionary. With respect to the performance of those duties in which he exercises his discretion in good faith, the courts will not review his judgment or restrain his action; but the discretion he may thus exercise must be a legal discretion, and within the limitations of his authority. He cannot act arbitrarily or capriciously, or in disregard of the established rules of law; and, when he is called upon by the court to answer the charge that his conduct is illegal, oppressive, and injurious, he should be able to present sucb facts as will clearly show that he is acting under authority and within the jurisdiction of his office. It is true, the defendant alleges in his affidavit that in rejecting the bonds offered and tendered by the complainants, and in holding them to be insufficient and invalid, he did so after an examination and investigation into the matter, and in the exercise of the discretion conferred upon him by law; but, from other facts alleged by the complainants, and not denied by the defendant, this allegation appears to be in the nature of an opinion which the defendant himself formed as to the character of his own acts in the premises. That there ha"e been evils in the administration of the insurance law may be admitted; that the defendant believes it to be his duty to mal{e the office of commissioner efficient and of substantial benefit to the public may also be conceded; but it does not follow that he may adopt any course or pursue any method that will accomplish the purpose he has in view. The law furnishes the guide and regulates the performance of official conduct, and will be construed as conferring those powers only which are expressly imposed or necessarily implied. Mechem, Pub. Off. § 511. A tempo· rary injunction will issue, in accordance with this opinion.

MOSS v. DOWMAN.

(Circuit Court of Appeals, Eighth Circuit.
No. 1,041.

June 27, 1898.)

1.

PUBr.IC LANDS-HoMESTEADS-REI,INQUISHMENT-BoNA FIDE SETTLERS.

When, on the relinquishment of a homestead entry, the land Is, and for some time past has been, In the possession of another, who Is a bona fide settler, his rights as such Immediately attach to tbe exclusion of a third person, who procures the relinquishment to be made, and wbo simultaneously with the relinquishment tenders an application for entry of the lands, and Immediately enters thereon and makes improvements.
It Is only when It Is made plain that the officers of the land department bave, by a mistake of law, deprived a party of land to which he is rigbtfUlly entitled, that a court of equity Is justilled In setting aside tbe action of the department.

2.

SAME-RULINGS OF LAND DEPARTMENT-EQUITY .JURISDICTION.

: 9f Minnesota.

Appeal from the Circuit Court of the United States for the District .

, Tbe bill In this case was filed In tbe circuit court for the district of Minnesota, for the purpose of determining the ownership of 160 acres of land ,sItu, ated in that state, as between the complainant and defendant, It appearlIlg that the legal title of the land is vested in the defendant, Richard Dow:miiD, ,under a patent oftbe United States duly issued to him under date of.·!March

88' ti'EDERAL REP61tTER.
17, !l89r.': A"etnurrer' to tM''bnl was ftled,,'and,'ilter argument,. was sustained tlie'clrl/ultcourt,. the-bill ;belng dislIllssed,., w,antof ,?equity, and the n,ow: seeks, a reversal decree \llsp1isslng the bnl. FrAID 'facts. recited In the bill and the, e:thlbitsattached thereto,. it appears H. Doran had made a hOmestead entry of 'tliat: o'nMay7, lS00, the :rand In the United States land office at Duluth, Minn., which hesubsequentlYrelinqulshe!'l, and, thereupon the complainant filed this relinquishment to be. allowed to enter the same In In tpe land office, and .m.ade., her oWn ·. Ou'Novemller 18, 1890, Richard Dowman, the defendant, ,filed In' the' land o1:Rcean' ltIlPllcation for the entry of the land' as a home· :stead; accompa.nledwlthan affidavit stating that he had made an actual settlement on the land on; tbe:19th of september, 1890, having a house ,thereon, and that he :wasil). e;ll:Chlslvepossession of the premises When Doran's relhlq:uished, on'tIle 24th of October, 1890. For the purpose of of thepllrtles, hearings' were had before the receiver determining' and register of the'locallil'nd'office, who did not agree In their conclusions, and the case 'theb;!went befol,'e the commil'\sioner, who decided In. favor of the complainant, Mosj;l, lj.nd thereupon an appeal was taken, to the secretary of the Interior,before whom the matter was fully heard, and by whom the facts were and stated as follows: "'l'he land Involved 'in this controversy 'lies' in tl1e' :First so1loo1 district of, Cook countY,state of' Minnesota. This county Is a <ver,y large Qll:e, being flfty mUes long east and and ,eighteen milas north aull south at the, east, end,and flfty miles wide soutl1at the west el)d. The northern line of the county is the north 'southern Une ot"Ca.nada. Thell1nd In controversy lles In the northern' central 'part of Cook county, near thtl Canadian Une. To use a description made by Miss .Moss"t'he defendant, !the land, was situated In the wildest and most unbrokllH wlldernel'ls, without rC:Jads, Or e.ven foot trails, through Minnesota for the settlements, distant by' ran from Duluth over nine" hundred mlles. 'fhe nearest post office Is flfty miles aWiI,y, and telegraph nearly one hundred milE!s distant.' (RIchard Dowman, the and contestant In the case, had llved for a number of Grand Marais, the county town of Cook county, distant fifty" mllefi !l011thf'jll,st, of tile land, and In the, same !lchool district. He was a member' of the First dlstiict school board. a county commissioner, was unmarried, and his occupation, besides the two county offices, appears to have been that of an explorer and guide for parties going through that part of the country. The evidence does not show that he had any other visible means of snpport or posse,ssedrmuch money. Although numerous persons haye made homestead entry of this land, none appear to have done so In good faith, for none appeal' tohava made any settleinent during' the period of five years It was entered and relinquished every six months. Dowman, according to his own testimony, khowlng the land had been thus entered and relinquished a number of times ,without any of the .entrymen attempting to make settlement thereon, went:,on the land September 19,1890, and began the construction of a house, w41/:h· he, finished October 10th following. From that ,time he made the land, his home, actually living there continuously , 11ntll, November, 1890, with :the Pllee;x:ceptlon of a trip to the county t9wn for provisions, Which he made October 19, 1890, returning October 24, 1890, the day,Doran's reUnquishment',was filed. From November 1, 1890. to the, date of the hearing, he has been temporarily absent for days at a time In Grand MarlliS, the county town of .cook county, a .village of aJ;id twenty Inhabitants, but which, fifty miles distant, lies in the same school district as does the land In. controversy. This absen'teeism.. appears owing largely to the fact that Dowman waS a member of the school board and a county commissioner, two distinct offices, and to fulfill the' duties of which pe was compelled to go to the county town. The county town was ,also the nearest point at which provisions could be obtained. OWing the of transportation, and the difficulties of the route, It required two days to make the trip, and' Dowman appears to have 'on ooenslons been ab;sent quite a number of days at a time from his claim. But tbls does not necessadly show bad faith, and th'e department always presumes temporary absences to be for good reasons" and, before a contrary reason wUl be accepted; "facts must be disclosed which prove It. In this case no such facts.

:t83
produce<!t; notping to! show Dowfilan had, :any other home than that on the land in controversy, beyond a room, over .foe store. of a friend, Willen he occupied in the &unty town on tb'esevislt!i;' Moss was a SChool teachet ill Grand Rapids:, Mlch:, and"had taught"school in cities for a period of twenty years.:;lbe was unmarried, about.. forty years of age, amI, bad, $4,000 . in cash, and Ii farm in Dakota yielding an. income of to $250 per annum, while bel' salary wlj.s $00 per montb. bougbt th'e relinqUishment of the land solely on the representations of her Dakota agent, from Doran, WhO,liS previously shown, had been eri'obeously allowed to make entry of tbe land. 'Without knowing anything of the land except from her agent, and without ever haying been nearer than one hundred and sixty miles on an air line, "and nine hundred miles by rail, she paid $1,000 for the relinqUishment. 'I'he 'eVidence shOWS that at that time Dowman was a settler living upon the lana. 'Returning to Grand Rapids, over one thousand miles Horn the land by tbe nearest route, although she had sworn she made entry on the land with. the purpose of making settlement thereon, Moss continued to teach school until the latter pn,rt of March, five' months after her entry, and after she had been served with a notice of Dowman's contest. The following month she made the trip to the land, arriving there two days before the expiration of the first six months after her entry. Pitching a tent within sight of Dowmun's buuse, in which he was living, she began the erection of irnproYements so near to Dowman's cabin that the clearings joined, erecting a residence tbat cost $700, and all the furniture and convenie'nces that money could lJuy to make it comfortable for a woman to reside In. 'All this expenditure and improvement were made in the face and with a knowledge of Dowman's claim and prior settlement, and thet'efore made at Moss' own risk. anti it would appear, for the purpose of defeating his claim, if possible, by means of superior improvements, in spite of the long-establlshed and well!mown ruling of this department in such cases. The character or value of ;\loss' improvements gives her no advantage. Because she had more money than DOlYman to expend on improvements does not detract from his rights. cIn. view of these facts, and that no evidence has been introduced which shows that Dowmun's settlement was not made in good faith, under the establisheti rullng of this tiepartment, the settler Dowman's rIght attaches Instantly on tne filing of Doran's relInquishment, and is therefore superior to Moss' entry." Based upon this decision, the land department issued a patent of the land to Riehard Dowman, and therenpon the present bill was filed, In which It is prayed that complainant be adjudged to be tbe owner of. the land, and tbat the defendant holds the legal title as trustee for complainant.

JamesK. Redington (Warren N. Draper, on brief), for appellant. L. C. Harris, for appellee. Before SANBOUN and THAYER, Circuit Judges, and SHIRAS, District Judge. District Judge, after stating the case as above, delivered the opinion of the court. In the brief filed by counsel for appellant, it is admitted that it is well settled that "all questions of fact presented and decided in a cOll:troverted .proceeding, where both parties are heard, are concluded by the dt:!partment decision" and arQbinding on the court. But where the of the, land department have, by a mistake of law, given to cope man the land, which" upon the facts found, belongs to another,; equity 'will grant relief by,putting the title where of right it ought to be." In this case it appears that a controverted proceeding was had fpe parties before the secretary of the interior, in which it .has been decided that time, to wit, October 24, 1890, w,hen eomplniuilllt mude application to enter the land,powman was theD! a /SeUltL' :tjlnH'C'9u in good faith, and, this being as matter of

184

88

FBDBRAL RIilPORTma.

fact1 the o,nly'questionof law arising thereon is whether the complainant could make. a homestead entry thereof which would be effectual against the .pre·existing actua.! occupancy of Dowman. On behalf of appellant it is argued that Dowman cannot be permitted to take advantage of the entry and occupation by him initiated September 19, 1890, because the land was not then open to homestead entry by reason of the then pending application of Doran; that, the land being thus segregated from the public lands open to entry, the at· tempt of Dowman to obtain a .settlement was illegal, and, the at· tempted entry being illegal, no rights can grow out thereof, on the principle that no person should be permitted to obtain an advan· tage by reason of his own wrong or illegal acts. The action of Dow· man in going lipan the land, for the purpose of making a homestead thereon, w3,s not illegal or wrongful, within the meaning of the rule invoked. When Dowman's entry was made no one was upon the land, and there was nothing to show that anyone claimed it, except the entry of Doran's application on the records of the land office at some liundreds of miles distant. If Doran's.application had ripened into a title, Dowman's actual entry on and settlement of the land would have been ineffectual to defeat it, but it would be ef· fectual and legal against all parties whose rights were acquired sub· sequent to tlle entry thus made. By the relinquishment of Doran's claim, the land became again subject to entry, and Dowman's actual possession and occupancy at once became effectual in his favor. His action in taking possession in September, and continuing the. same thereafter, might have been ineffectual as against Doran, but such action was not illegal and wrongful in such sense that he can· not claim the benefit thereof as against the appellant, whose entry was not made until the 24th day of October, 1890. The facts show that Doran's entry was relinquished on that day, and the land was then restored to the unappropriated public domain. When this restoration of the land took place, Dowman was a settler thereon in good faith, living on the land, and his rights attached as soon as the land became subject to entry. The facts, as found by the secretary of the interior, show that Dowman was in }XIssession of the land, in good faith, for homestead purposes, during the whole of the 24th day of October, 1890; and, as a matter of fact, it is impossible for the appellant to show that, when she filed her application in the'land office on that day, the land was not then in the possession of Dowman, and she is of. necessity driven to claim, as matter of law, that Dowman's entry was illegal and wrongful, and that, as her application was' filed in the lllhdoffice at the same time she filed the Doran relinqti.lshment, she becomet:l entitled to the benefit of the Doran entry, as against the effect of the existing possession by Dowman. evl'dence shows that appellant paid Doran $1,000 torelinquish his entry, but by this payment she did not become the assignee of Do:ran's rights or entry. The payment was made in considerationdf'Doran relinquishing his entry, in order' that thereby the lan(l,mightbe restored to the nnappropriated public domain, and thus become opanto other entries. It is not open to appellant to insist that she is, in any sense, the'snccessor to, or assignee of, the Doran

MOSS V. DOWMAN.

1S5

entry. The payment to Doran of the sum named created no equity or right in favor of appellant as against Dowman, and the only legal that can be given to the relinquishment executed by Doran is that thereby the land became again open to appropriation under the homestead act, and, being thus released from the effect of the Doran entry, the appellant made application at the land office to enter the land, which application is in law effectual from its date; but the fact, as found by the secretary of the interior, is that, when this application was made, the land was then occupied by a bona fide settler, and there is no legal or equitable ground for holding that the right conferred by such prior possession and occupancy must be postponed to the right created by the application filed in the land office. Counsel for appellant claim that their position is sustained by the ruling of the supreme court in Wood v. Beach, 156 U. S. 548, 15 Sup. et. 410. In that case it appeared that Wood, in 1870, had occupied certain lands in Kansas, seeking to make a homestead thereof, which were within the indemnity limits of a railroad grant then existing, and under which the land had been withdrawn from sale or entry by proper orders of the land department, entered in 1867. The final selection of the land under the railroad grant was made in 1872, and the deed from the state to which the title passed under the act of congress was made, in 1873, to the defendant Beach. The supreme court held that the withdrawal orders in 1867 were sufficient to defeat a settlement for homestpad purposes taking effect while 'the orders were in force, because thereby the land was in fact withdrawn from sale or entry, and, as the railway company subsequently perfected its right to the land and made selection thereof, its rights could not be defeated by any supposed equities existing in favor 0, Wood, who made his homestead entry with full knowledge of the facts. This case would be an authority in point, if the present contest was between Doran, claiming under his entry in the land office, and Dowman, claiming under an actual settlement made after the Doran entry had been filed; but it is not applicable to the question at issue between the present litigants. In the brief submitted for appellant, counsel have cited many decisions of the land department for the purpose of showing that from 1859 to 1885 it was uniformly held "that no right upon cancellation of an entry inured by reason ofa settlement made during its existence; that to hold otherwise would be to enable a trespasser to benefit by his own wrong i" and it is therefore claimed, under the rule of stare decisis, that the secretary made a mistake of law in not following the doctrine claimed to be established by the decisions cited; but counsel further show in their brief that, since 1885, modifications of the previous ruling have been made, and recognition has been given to settlements made under circumstances similar to those existing in the present case, and that since August 20, 1890, the rulings of the department are the effect that a settlement made in good faith and prior in time will be held good as against a filing or tendered simultaneously with the relinquishment or cancellation of a pre-existing entry. It thus appears that if the secretary in this case had held that

186

88

FlmJliRAL ltEPORTIl:Il.

thongh made in goop to ,him upon the"reu'nquislnnent of Doran's ',entry';mch rUling':would'have beeurcontrllJ'Ylto that established'Jby, the later decisions' of the department; i,lllnd;.:certainly it cannot ' said' that, in following the later rulingS,;the secretary violated: any l'ecogaized rule of law; arid it is only'whenitds'madepiain tblat:the officers of the land department have,by'o. mistake of law, depri;.veda party of land to which he is ,rightfullyentltled that a court of equity is justified in setting aside the action' of the depa,rtment.·,Moore v. Robbins, 96U. S. 530; Marquez 'V; Frisbie, 101 U. R473; Quinby v. Oonlan, 104 U.s' 420., " ,', Being of tile 'opinion' that the'faets set forth in the bill herein filed do not make a case for the intervention of a court of equity. witl." in the rule laid down in thecasesi:cited, it foIIows,that the trial court did not err in dismissing the bill on the meri tis, and the decree . to that effect is affirmed.

If a greater chaFge be made for a shorter than for a longer distance onf

FOURTH SECTION OF THE ACT

itt)

REGUI,ATE COMMERCE.

2.

SAME.

,"

. "

,

Hail",ay . milY, rim',n dissiniilarclrcumstances. ,and con,dltions as exenipi the carrIer frotD, an ohser'l"ance of the long and 'short 'hllUlprovlslon; The fourtb,sectlon'declares that the carrier shall not make the higher .chargeti:Hhe nearer ·pGlnt under substantially similar circumstances ll.pd 'cPll-p.it!Qns.·lf, thecircumstllnces andcQndltions are not subst/lntlally sirnHarr theI,\ the ,liillctioI,\ d<Jes nqt apply, and the carrier is not bc;mnd, to p!garli,1t 'In the malHngof Its t4riffs.'.'Ff raUwaycompetltlon does actually the lratidlt the more idlstant;polnt, that rate is not madeUilder tbeisarhe cdricu.mstancell arid condltions lUI Is the rate at tbe